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Once on life support, ‘I’m sorry’ bill gets another chance

By: Dan Shaw, [email protected]//April 19, 2013//

Once on life support, ‘I’m sorry’ bill gets another chance

By: Dan Shaw, [email protected]//April 19, 2013//

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After Wisconsin legislators failed last year to pass a bill that would have let doctors tell patients “I’m sorry” without fear of legal consequences, a nurse-and-doctor pair of Republican lawmakers has resuscitated the proposal.

State Sen. Leah Vukmir, a registered nurse, and state Rep. Erik Severson, an emergency room doctor, have introduced Senate Bill 129 and Assembly Bill 120, both of which would prevent medical practitioners from being liable for making statements of sympathy, condolence and compassion. If passed, the proposals would add Wisconsin to the group of 36 states, the District of Columbia and Guam that have similar laws.

But critics of the bills say the proposals also would put Wisconsin among a much smaller crowd, one composed of states that go beyond offering protections for expressions of sympathy and prevent statements of fault from being admitted as evidence in courts. The bills proposed by Vukmir and Severson state legal protection would extend to statements of fault, liability, remorse or responsibility.

As with a similar bill put forward last session that was passed by the Assembly but didn’t receive a hearing in the Senate, critics contend the latest proposals once again go too far. Kevin Martin, a registered nurse and a lawyer who represents plaintiffs in medical malpractice cases, said he can think of no profession or trade to which Wisconsin law provides protection for admissions of fault.

Very few lawmakers, he said, would consider passing a law that would keep a driver’s statement of responsibility for a crash from being admissible in court. Why then, he said, should medical practitioners be treated differently?

“Under current law, if a doctor says, ‘I’m at fault,’ that is admissible,” Martin said. “Physicians are treated the same as every other human being in Wisconsin.”

Vukmir said the bill is really meant to ensure that doctors and patients feel as if they can hold open and honest discussions with each other.

“We hear people complain all the time about the bedside manner of nurses and doctors,” she said. “And, indeed, if we are worried about being sued, it could be because of situations like that.”

She said nothing in the bill would prevent patients from suing doctors who have made mistakes. At the same time, she said, one way to reduce the number of suits being filed might be to allow doctors and nurses to say “I’m sorry” without fear of legal consequences.

Martin agreed that keeping open the lines of communication helps prevent lawsuits. It has been common practice over the years, he said, for doctors and nurses to be taught they should avoid saying “I’m sorry” for an unfortunate medical outcome.

He advised they do the opposite.

“What I teach is that the breeding grounds for lawsuits is suspicion because the patient’s questions aren’t being answered,” he said. “And nobody has said what went wrong.”

Martin said any claims that medical malpractice suits are too common in Wisconsin are dubious at best.

From 1987 to 2012, the number of cases filed before medical mediation panels – a preliminary step to filing a lawsuit – dropped from 410 to 140. And of the 667 malpractice suits that went to a jury verdict from 1989 to 2012, 72 percent were decided in favor of the defendant.

“How much more,” Martin said, “can you gild this lily?”

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